ROOP SINGH ETC. Vs. MAHANT RAM ETC.

JUDGEMENT

(1.) This second appeal is directed against the decision of the Additional District Judge Bilaspur, affirming on appeal the decision of the Subordinate Judge, in a suit for declaration by the Plaintiffs Sher Singh and three others for ownership and joint possession of land measuring 47 bighas, 19 biswas and situate in village Samloh, Pargana Ajmerpur of that district, whereby the suit was partly decreed in favour of Sher Singh and others to the extent of 6 big has, 14 bis was and dismissed for the rest. The Plaintiffs appeared in Court with the allegations that one Shrimati Dwarku was the owner of one -half share in the property of which she made a gift on 11 -11 -1957 in favour of the Plaintiffs. Dwarku was in actual possession of 6 bighas, 14 biswas and the Plaintiffs came in possession of that area. As to the remaining area, the Plaintiffs were in joint possession as co -sharers. They filed a suit for partition in the Revenue Court, but were directed to institute a Civil suit as their title was disputed by the Defendants Daya Ram and others who were co -sharers with Dwarku.

(2.) The defence was that Dwarku had executed a deed of surrender of her one -half share in the land (Ex. DA) on 17th Fagun, 1987, BK equivalent to 1930 AD, in favour of the Defendants and thus made them the absolute owners of her share. However, Dwarku retained for her maintenance 6 bighas, 14 biswas of land comprising in five specific fields, in Khasra No. 228. It was further contended, inter alia, that the Defendants had perfected their title by remaining in adverse possession and the Plaintiffs could not claim title on the land excepting in 6 bighas, 14 biswas.

(3.) Both the pleas of the Defendants found favour with the learned Subordinate Judge and although the suit was dismissed, yet it was held that the Plaintiffs had an enforceable title for 6 bighas, 14 biswas against the Defendants. All the four Plaintiffs came in appeal before the District Judge. The appeal was filed on 4 -12 -1963. During the pendency of the appeal, on 5 -3 -1967, Sher Singh died but his legal representatives were not brought on the record under Rule 4 of Order 22 of the Code of Civil Procedure. As such the order of abatement was passed so far as the joint share of Sher Singh was concerned. An application was presented by the remaining Appellants on 6 -7 -1968 for setting aside the abatement, on the contention, that Sher Singh held special power of attorney for the other Appellants, that the pendency of appeal was not within the knowledge of other Appellants two of whom were serving in the Army and that there was a sufficient cause for not applying within the prescribed time for substitution of legal representatives. This contention did not find favour with the learned District Judge and the abatement was not set aside by an order dated 5 -9 -1968.